– Summary by Hannah Jackson
The Supreme Court recently approved a proposed advisory opinion from The Florida Bar
Standing Committee on the Unlicensed Practice of Law (“Standing Committee”) in which it was
decided that an out-of-state licensed attorney working remotely from his Florida home solely on
federal intellectual property matters for a New Jersey based law firm did not constitute the
unlicensed practice of law in Florida. The Florida Bar re: Advisory Opinion – Out-of-State
Attorney Working Remotely from Florida Home, 318 So.3d 538 (Fla. 2021).
The advisory opinion comes after an out-of-state licensed attorney, Thomas Restaino,
requested the opinion from the Standing Committee on whether his remote work activities from
his Florida home constituted the unlicensed practice of law in Florida. The Standing Committee
held a public hearing on the matter, and at its conclusion, filed a proposed advisory opinion with
the Supreme Court concluding that “Mr. Restaino’s remote work activities do not constitute the
unlicensed practice of law in Florida.” With the advisory opinion in hand, the Court invited all
interested parties, including Mr. Restanio, to file briefs or responses in support of or in
opposition to the opinion. This request elicited a single response: the Real Property, Probate, and
Trust Law Section of The Florida Bar filed a response in support of the opinion.
At the outset, the Standing Committee noted Rule 4-5.5(b)(1) of the Rules Regulating
The Florida Bar which provides that “a lawyer who is not admitted to practice in Florida may not
establish an office or other regular presence in Florida for the practice of law.” The Standing
Committee then considered the facts set forth by Mr. Restanio to inform its decision that his set
of circumstances did not run afoul of the rule. Although not an exhaustive list, some of the key
facts relied upon included: after retiring from a corporate IP counsel position, he moved from
New Jersey to Florida and began working as an attorney with a New Jersey law firm specializing
in federal IP law; the firm had no offices and had no plans to expand its business to Florida; his
employment with the firm would not include representing Florida persons or entities nor would it
involve solicitation of any Florida clients; he would have no public presence or profile as an
attorney in Florida nor would the firm advertise or otherwise inform the public of his remote
work presence in Florida. Given the totality of the facts presented, the Standing Committee
concluded that Mr. Restanio’s set of circumstances did not implicate the unlicensed practice of
law in Florida. In reaching that decision, the Standing Committee believed “all indicia point[ed]
to [Mr. Restanio’s] practice of law as being in New Jersey, not in Florida.” He was neither
practicing Florida law nor providing legal services for Florida residents, and neither he nor his
law firm was holding out to the public as having a Florida presence. Accordingly, the Standing
Committee opined that although Mr. Restanio was an out-of-state licensed attorney, his remote
work on federal IP matters for a New Jersey based law firm in his Florida home did not
constitute the unlicensed practice of law in Florida.
Having considered the proposed advisory opinion and the response filed, the Court
subsequently approved the opinion, and it became final June 11, 2021.
